1. SAIJAD ALI SHAH, J.---This being originally a jail appeal, having been admitted as such, was subsequently merged into a regular appeal, when power on behalf of appellant was filed by the learned counsel. This appeal is directed against the judgment dated 8th December 1975, passed by learned 11 Additional Sessions Judge, Nawabshah, whereby appellant named above, has been convicted for offence under section 302, P. P. C. And sentenced to life-imprisonment and a fine of Rs. 500, in default of the payment whereof, he would suffer R. I. For three months.
2. Shortly stated prosecution case is that appellant Miro was married to deceased Mst. Sharma daughter of complainant Juwan for about 10-12 years before the incident and lived in the house of complainant in Deh Rajoo Kerio taluka Noshero Feroz. From this wedlock three children were also born. Appellant developed illicit relations with Mst. Bachi wife of Obhayo Mochi and since about a year before the occurrence, kept on insisting on his father-in-Law Juwan complainant for permission to be shifted to that village along with his wife, to which complainant never agreed and deprecated his affair with the other woman. Ultimately about three months prior to the incident appellant left the house of the complainant and shifted to the village of Mochis without his wife, who did not accompany him respecting the wish of her father. On this account appellant nursed a grudge against his wife and stopped visiting the house of the complainant.
3. On the fateful day, i.e. 27-4-1974 at t1pahri time, complainant Juwan and his son Muhammad Ali were at home, when deceased Mst. Sharma and her mother Mst. Salimat left together for the house of P. W. Khair Muhammad, at a distance of two numbers for grinding the flour. It is the case of prosecution that after having ground the flour the mother and daughter were returning from the house of P. W. Khair Muhammad at tipahri time, when they saw at a distance of about 20 paces appellant in the company of four other persons. Appellant Miro was armed with a pistol. Jamal had a Pistol, while Abdul Rahim and Ghulam Nabi had lathi and hatchet respectively. Wadero Shaikho was empty-handed. Appellant Miro challenged his wife that he would not spare her and after abusing her fired two pistol-shots at her. On the cries rushed to the spot complainant Juwan and his son P. W. Muhammad Ali, who saw the incident. Mst. Sharma fell down injured and died.
4. Appellant and his companions then went away. Afterwards Khair Muhammad, Ali Bux Brohi and many other persons came to the spot, who were apprised of the incident. Leaving the witnesses behind near the dead body, complainant Juwan proceeded to Police Station, Padidan, where he filed F. I. R. At 1-30 a.m. On the following day. The distance between P. S. And the vardat is about 14 miles.
5. P. W. 9 Ghulam Hyder A. S. I. After registering F. I. R. Exh. 18 visited vardat, which was situated in the onion land of Abdul Rahim Gahejo. He secured blood-stained earth, flour, an empty cartridge and one pellet from the spot. He sealed blood-stained earth and empty cartridge. He prepared mashirnama of vardat Exh. 11 and Inquest report Exh.
12. He sent the dead body to the hospital for post-mortem examination. He recorded police statements of P. Ws. Mst. Salimat, Muhammad Ali, Khair Muhammad and Ali Bux. Subsequently on spy information, that appellant Miro would pass through Duro Nori bridge, he organised Nakabandi on 30-4-1974 and at about 2 a.m. Arrested appellant Miro and secured from the fold of his loin-cloth a country-made pistol, which on scrutiny smelled of fresh smoke. Miro had no licence for this pistol. The A. S. I. Brought Miro to the Police Station and registered a case against him under section 13(d) of the Arms Ordinance. Thereafter the Investigating Officer interrogated companions of appellant, who were present with him at the time of incident. Subsequently after getting statements of P. Ws. Mst. Salimat, Muhammad Ali, Khair Muhammad and Ali Bux recorded under section 164, Cr. P. C. And after completing other formalities including sending of pistol and crime empty to Ballistic Expert, he submitted challan in the Court in respect of appellant Miro only and left off his companions mentioned above for the reason that there was no incriminating evidence against them.
6. Prosecution has examined in all nine witnesses. P. W. 1 is ballistic expert Mukhtiar Ahmed, who has reported that crime-empty was fired from the pistol allegedly secured from the appellant. P. W. 2 is Moula Bux Tapedar, who has prepared and produced sketch of vardat Exh.
9. P. W. 3 Noor Muhammad mashir has attested mashirnama of vardat Exh. 11 and inquest report Exh.
12. P. W. 4 Muhammad Hashim constable escorted the dead body to the hospital P. W. 5 Illahi Bux constable has attested mashirnama of arrest of appellant and recovery of pistol Exh. 16 P. W. 6 Juwan is complainant. P. W. 7 Mst. Salimat has been examined as eye-witness. P. W. 8 Khair Muhammad has been examined to corroborate Mst. Salimat but did not support and was declared hostile. P. W. 9 Ghulam Hyder is the Investigating Officer. Dr. Abdul Hakim, who performed post-mortem examination on the dead body was examined before the Committing Court and his statement has been transferred to the file of Sessions Court. He performed post-mortem examination of Mst.
7. Sharma on 28-4-1974 and found the following external injuries: "(1) Six circular lacerated wound below left breast 1/3" diameter each going into cavity.
(2) Seven circular lacerated wound over left breast one of them half inch in diameter with wads in it, others 1/3--- in diameter and having charred margins.
8. On internal examination he found the following injuries on her person :- "The walls and ribs were cut under the site of Injuries Nos. 1 and 2. Pleura was cut. Left lung was cut at several places. Right lung was congested. Heart was empty and left verticle was cut. Walls of abdomen were cut under the site of Injury No. 1. Spleen was cut at several places whole of the abdominal cavity and left side of chest contained blood. Five pellets were taken out from left lumbar region."
9. From the external as well as internal examination of the dead body of Mst. Sharma, the doctor was of the opinion that the death was caused due to shock and haemorrhage as the result of abovementioned injuries caused by fire-arm. The time that elapsed between death and post- mortem was about 18/19 hours. The death of Mst. Sharma was instantaneous. He has further stated that both the injuries were individually sufficient to cause death in the ordinary course of nature.
10. The defence of appellant is total denial of prosecution allegations. He has further stated that he resided with the parents of his wife, who was willing to be shifted with him but her parents had refused because complainant Juwan and his wife wanted to fleece him. He has further stated that mashir Noor Muhammad is inimical to him and he has been implicated in a false case. He has led no defence.
11. We have heard the learned counsel for appellant and state at length and have carefully examined the record in the light of their contentions.
12. So far the direct evidence in this case is concerned, originally the prosecution proposed to examine Mst. Salimat, complainant Juwan, Muhammad Ali and Ali Bux Brohi as eye-witnesses, as is manifest from F. I. R. Ali Bux Brohi, who is not related to the complainant party and as admitted by complainant resides in the village of Abdul Rahim Brohi at a distance of 7 paces from vardat, has not been examined by prosecution. He would have been very natural and independent eye-- witness. Muhammad Ali son of complainant has also not been examined. Before the trial Court Mst.
13. Salimat has been examined as eye-witness and her husband complainant Juwan has been examined as eye-witness, who saw part of the incident in which second shot is alleged to have been fired by appellant at Mst. Sharma. This story about the second part of incident alleged to have been seen by complainant does not appear probable for the reason firstly that two shots could be fired from pistol consecutively without any break and it is-not natural that appellant after firing first shot would Wait for some time to allow eye-witness to come to the spot and then fire second shot. Secondly, the complainant who is about 70 years old at the time of incident admitted before the trial Court that be was a little deaf and there is observation of the trial Court on tile record that complainant was shown three fingers from a distance of six feet, but he could not say as to how many they were, which only shows that not only he is deaf but his eye-sight is also sufficiently weak, so he could not have heard the pistol shots and rushed there so hurriedly to see the second shot being fired. Thirdly, the complainant had stated before the committing Court that as soon as he had arrived at the spot Me. Sharma was lying down on the ground and her mother was raising cries. In these circumstances we hold that evidence of this witness is highly doubtful.
14. Now we come to the star witness of the prosecution Mst. Salimat, who is the eye-witness of the whole occurrence as claimed by her. She has given the names of appellant as well as his four companions to be present at the spot and how they were armed and the graphic account of how attack was made by appellant. So far the presence of companions of appellant at the spot is concerned she as well as her husband Juwan complainant have been disbelieved by the Investigating Officer, as they were not challaned. This reflects upon the veracity of both these witnesses. Before the trial Court she has stated that after appellant challenged Mst. Sharma, she started to run and appellant fired his pistol and the shot bit her in the back, then appellant overtook her and shot her from front. This assertion is belied by medical evidence which shows that both injuries were inflicted on the front side. Before the committing Court he had stated that Shaikho instigated not to spare Mst. Sharma, whereupon appellant Miro fired pistol shots at her. She has deposed before trial Court that appellant fired second shot immediately after the first shot after covering a distance of 20 paces. This hardly leaves margin to allow time to the complainant to come and see the second shot being fired. According to the sketch of vardat and deposition of Moula Bux Tapedar, distance between the spot and house of complainant is 350 ft. Towards north- east and house of Khair Muhammad is 302 feet from the spot in the opposite direction of West- South corner and in-between these two houses there is no path. Dead body was lying in the middle of these two houses in onion cultivation and grass was trampled and there were dragging marks.
15. This is so specifically stated in mashirnama of vardat. This shows that it was not a path on which deceased and her mother were coming as claimed by Mst. Salimat. Incident might have taken place in some other manner or at least certainly not in the manner as claimed by these eye-- witnesses.
16. Statement made by Mst. Salimat at different stages of proceedings are so replete with material contradictions that it is difficult to put implicit reliance upon her as truthful witness. The only inference, which is possible to be drawn from her evidence is that she has not seen the incident and she was not with her daughter when the incident took place. This view gets more support from the fact that she had implicated four companions of appellant to be present at the spot, but she was not believed and they were not challaned. Mst. Salimat and complainant are mother and father of deceased and as such they are highly interested witnesses, their evidence must be subjected to deep scrutiny with great caution. P. W. Khair Muhammad who is supposed to corroborate Mst. Salimat and complainant has not supported prosecution case before the trial Court and was declared hostile. P. W. Khair Muhammad is son of Masat of complainant and also husband of sister of Mst. Salimat. He is also maternal-uncle of appellant. The learned trial Court after criticising the evidence of complainant Juwan extensively has in the end accepted his evidence to corroborate that of Mst. Salimat. We are unable to find any justification for such conclusion for the following reasons :---
(1) Complainant testified that he was eye-witness to the later part of the incident in which second shot was fired but he has been disbelieved.
(2) He had implicated four companions of the appellant in F. I. R. But they were not challaned.
(3) He was an old man of 70 years at the time of incident and is deaf as admitted by him and short-sighted as observed by the Court.
(4) He is father of deceased as such highly interested witness and further is strongly motivated against the appellant."
17. No reliance can, therefore be placed on the evidence of this witness to corroborate the so-called ocular testimony of Mst. Salimat. One tainted piece of evidence cannot support another tainted piece of evidence.
18. Now the evidence of Mst. Salimat does not find corroboration from any other independent source.
19. In the circumstantial evidence it is stated that crime empty has been recovered from the spot, but this crime empty has not been mentioned in F. I. R. Which is lodged by complainant Juwan who claims to have seen later part of the incident in which second shot was fired. He bad come to the spot after hearing one shot. Secondly, whole incident was again narrated to him by Mst. Salimat.
20. Incident is alleged to have taken place at tipahri which is broad daylight, they could not have missed empty cartridge on the spot but there is no such mention in F. I. R.
21. The story about the alleged arrest of the appellant and recovery of crime weapon, i.e. Pistol from him appears to be more dramatic than realistic. P. W. 9 Ghulam Hyder A. S. I. Has deposed that he had received spy oinformation that appellant Miro would pass Duro Mori, hence on 30-4-1974 he organised nakabandi and at 2 a.m. Challenged a passerby who attempted to run but was caught.
22. On inquiry he gave his name as Miro and since he appeared to be of suspicious character and was giving evasive replies, his person was searched and a pistol was recovered from the folds of his loin-cloth. He would not produce licence for the same. The I. O. Then opened the country-made pistol and it smelled of fresh smoke, he then seized it and sealed it. It would not be out of place to mention here that pistol smelled of smoke on 30-4-1974 at 2 a.m. When the incident is said to have taken place on 27-4-1974 at tipahri. This assertion of I. O. Is not free from doubt. Secondly, when I. O.
23. Was acting on spy information, no reason is given as to why he did not take one or two independent witnesses to act as mashirs. He had taken only police constables in his party and two such constables have been made mashirs. P. W. 5 Illahi Bux H. C. Who has been examined as mashir has contradicted I. O. When he has deposed that Nakabandi was organised in the ordinary course and it was not done to arrest the appellant. So the story about spy information is falsified.
24. The Investigating Officer has testified that after the recovery of pistol, appellant was brought at the Police Station where during further interrogation it transpired that appellant was wanted in the murder case also. Now if this is true then there was no earthly reason to seal the pistol at the place of recovery because it was not a crime weapon and it was not in the knowledge of I. O. That appellant was wanted in the murder case. Although the Investiga--ting Officer in his evidence before the trial Court is silent on the point as to how mashirnama of recovery was prepared at the spot of Nakabandi but mashir Illahi Bux H. C. Has stated that it was prepared at that very time, i.e. At about 2 a.m. In the light of torch. He could not further explain as to from where the torch had come or who was carrying that torch. In these circumstances it is difficult to believe that pistol was sealed immediately at the spot and mashirnama was also prepared at the spot in the light - of torch. In all probability mashirnama was prepared at the Police Station and pistol was also sealed there. The evidence produced by prosecution to prove recovery of pistol with specific assertion that it was sealed then and there is highly doubtful.
25. The evidence on the point of motive, as produced by the prosecution, leads us nowhere as it does not fit in with the story. It is admitted by complainant and Mst. Salimat that relations between appellant and deceased wife were congenial and she was willing to go with her husband but they were opposed to it and did not permit her to go. In such circumstances appellant, who was so anxious to take his wife with him, would be expected, in the ordinary course of nature, to bear grudge against the father and mother of his wife and not the deceased wife who was willing to accompany him but for the intransigence of her parents. In keeping with this natural conduct, if Mst. Salimat mother of deceased had been present with her at the spot, she would have been selected by the appellant as the first target for preventing deceased from shifting with him. In these circumstances we are inclined to hold that evidence of motive is also not free from doubt.
26. For the reasons mentioned above we hold that piece of evidence produced by prosecution such as ocular testimony, corroborative evidence, circumstantial evidence, evidence of motive, as discussed above in detail, is not free from doubt as such one tainted piece of evidence, in the result the whole prosecution evidence is tarnished without doubt. Reliance is placed on 1977 P Cr. L J 662 and 1978 P Cr. L J 195. It is therefore held that prosecution has failed in its duty to prove the case against the appellant beyond the shadow of reasonable doubt. We therefore give benefit of doubt to the appellant and set aside his conviction and sentence. Appeal is therefore allowed and the appellant may be released forthwith if not wanted in any other case.